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A fine kettle of fish

Bipin Adhikari
The Kathmandu Post, July 29, 2010
Source: The Kathmandu Post

The weird electoral contest between UCPN (Maoist) chief Prachanda and Nepali Congress leader Ram Chandra Poudel for the post of prime minister scheduled to be held on August 2 is not surprising. This is a product of the defective constitution that Nepal has adopted as an interim arrangement.

If Damodar Pande (1799-1804) is taken as the first prime minister of Nepal, Madhav Kumar Nepal (2009 onwards) would be the 58th. As the story given by historians goes, Pande took over the coveted position himself in the best assessment of the situation because King Rana Bahadur Shah had just abdicated, and his son and heir apparent, one-and-a-half-year-old Girvan Yuddha, was too young to replace his father. Pande faced almost no protest against his move. His rivals Bhimsen Thapa, Dalbhanjan Pande and Queen Rajrajeswari—all very powerful at the palace—were already out of the country with the king.

From this time onwards, the position of the prime minister became part of the court of the royal palace. Ever since, it was either the free choice of the king (or the queen) to appoint who the prime minister should be, or an induced choice. But it was only in 1959, or 155 years after the assassination of Prime Minister Damodar Pande, that multiparty general elections to parliament were held based on adult franchise; and B.P. Koirala, being the leader of the party commanding a two-thirds majority in the house, was appointed by the reigning king as prime minister.

In a Westminster-style parliamentary system, it is the responsibility of the head of state to ask the leader of the party commanding a majority in the House of Representatives to form a government based on his electoral strength. In a post-election scenario when there is a party in the house which is holding a clear majority of seats, there is little controversy about this matter. As such, the leader of the parliamentary party is without doubt asked to form a government in that case. There is no election in the house, whatsoever.

In alternative scenarios, or when there is no party with a majority, the head of state has to see whether a leader who can mobilise a coalition of parties to form a majority, or a minority party even if it is still far behind in the required number of votes, can provide the necessary leadership. When the head of state does so, here too, he or she is guided by the strict parliamentary convention to ask the person best placed to secure the confidence of the house (that is, the active or passive support of a plurality of its members). Once the prime minister is appointed, he or she is then asked by the head of state to form the cabinet, bring the house in order and demonstrate its confidence to carry on further.

The role of the head of state in this exercise has two immediate effects. First, by appointing the potential prime minister, he or she recognises immediately the competitive electoral strength of the party which has shown its mandate to lead the country (when compared to other competitors). Second, by recognising the leader of the house, he or she gives the opportunity to talk with the colleagues, organise a cabinet, and prepare itself for a vote of confidence.

When the prime minister is a coalition leader, or just a minority party leader as noted above, this is also the time for the prime minister to prepare a common front, sort out differences between the parties joining hands, and create grounds for a stable government. This also gives him or her the opportunity to deal with others from positions of power (by virtue of whatever electoral mandate he or she has). In such a situation, a prime minister need not go to every party to "buy" their vote, resort to malpractice and show "numerical" strength over others.

More or less, this was how it was in Nepal under the 1990 Constitution. Unfortunately, the Interim Constitution, drafted and frequently amended with the least commitment to democracy, parted with this time tested convention for hidden political reasons. It encouraged constituting a government based on "consensus" in order to facilitate a non-partisan approach in writing the constitution. But it never happened, and there is the least likelihood of it happening this time around too. A person who cannot command a majority cannot lead a consensus government either. When there is no majority party, the role of the head of state is crucial to ensure smooth sailing through the divided house. His wisdom in choosing the most suitable person as prime minister would have saved the continued legitimacy of the April 2008 elections.

The resulting malpractices, including the fast degeneration of the electoral mandate, could be easily shingled out. First, a prime minister who was still commanding a clear majority in the house was made to resign. Had the need for a "national" government been the issue, the prime minister should have been given the first opportunity to talk with the parties unrepresented in his council of ministers and expand the cabinet without smashing his team. Second, every party which can help build a new coalition, or a new national government, is now contesting for the post of prime minister, making it impossible for others to form a government (the smaller parties being insignificant in the head count).

Third, when it is very clear that the in-house election for the prime minister has failed, the constitution should have allowed the formation of a minority government without a hitch. In fact, the largest party in the house is being victimised because its strength based on the electoral mandate is not being recognised. Whether a national government or a government of a coalition of parties, the largest party should have been given the opportunity to form the government first, and take the necessary confidence initiative later. There is no provision in the constitution which states that even a minority government should be allowed to perform in good faith and that it takes a vote of confidence in due course.

Finally, the simple rule that where the house is not able to produce a government at all, it should be dissolved and fresh elections called has also not been stated in the constitution in the spirit of the Westminster tradition. Given the responsibility to adopt a new constitution for the country, the Constituent Assembly, or the country's parliament, was not provided this option. There is logic in this argument. But the net effect of all these constitutional defects is that this country cannot produce a government on the basis of the constitution.

What is there as a direction, then? There are two possible options. The first direction is another lot of compromises on Nepal and its institutions. The Interim Constitution created an elephant without providing a mahout. The mahout is operating from outside the constitutional regime—defeating the purpose of democracy and the rule of law.

Or, as stated in the beginning, a new Damodar Pande will have to emerge who will proclaim himself the new protector for the transition. Suffice here to pinpoint what led to the rise of Jung Bahadur. The history of the world shows that a constitution does not become democratic simply because it has been drafted by a popular leadership. One must not be oblivious of the requirements of the law of the constitution in a democratic framework.

Bipin Adhikari
lawyers_inc_nepal@yahoo.com


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